Diminished copyright exceptions via contract: Thanks to the digital era, the entertainment industry likes to claim that you no longer purchase content, you merely "license" it. Thus, they're able to establish their own rules to govern what you do with the content, rather than relying on the boundaries of copyright law. As such, for the most part, many have tried to (a) claim copyright/control over more than they have a right to (b) deny you any fair use exceptions and (c) deny you your first sale rights to resell the products you "bought." In other words, by claiming that the sale is a "license" rather than a "sale," companies are effectively able to wipe out the important limitations on copyright.

Regulatory capture: The article highlights how copyright policy these days appears to be almost entirely driven by the entertainment industry, who is merely one beneficiary of the law -- but not the intended beneficiary (that would be the public). He uses the examples of the recent "voluntary" (at the strong urging of the White House) agreement between ISPs and the entertainment industry, as well as SOPA, which he notes just takes those "private" powers to extend copyright law even further:

The Stop Online Piracy Act (SOPA), the companion bill to the Senate’s PROTECT IP Act, would further privatize adjudication and punishment. Title I of that law (dubbed the E-PARASITE Act) creates a “market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.” It achieves this by empowering copyright owners who have a “good faith belief” that they are being “harmed by the activities” of a website to send a notice to the site’s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.

The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed—only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant “knowingly materially” misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.

There is also a catch: a site owner who issues a counter-notice automatically consents to being sued in U.S. courts (a strong disincentive for sites based abroad). With few checks at all, SOPA gives copyright owners a sharp tool to disrupt and shut down websites. Based on their past conduct, there is no reason to think that copyright owners will use this tool with any measure of restraint.

After thinking about this article for a little while, it finally hit me what's going on. While the entertainment industry and its supporters keep claiming that they're "strengthening copyright," nothing could be further from the truth. All of this is about the industry killing copyright. They're wiping out everything that's actually important about copyright law.

Think about it: the beneficiaries of copyright law are supposed to be the public. The mechanism is through limited-time, government-granted monopolies. But all that matters in copyright law is if the public is benefiting. Things like fair use and the first sale doctrine were added to copyright law to make sure that copyright law benefited the public. But when you look at the two situations described by Mazzone, you realize that everything the industry is doing is to make sure that copyright law no longer benefits the public at all, but rather all of the benefits accrue solely to a few gatekeepers. They're not strengthening copyright law at all, they're killing it. They're making it something entirely different than what it's intended to do... and in the process they're harming the public.

Reader Comments

Therein lies a question or seven...

The question is, how does the public take away or remove copyright if there's no benefit to the public at all? How can the public fight back if they don't even know (in general) what they've lost?

Sure, I can send in a letter to my Congressman and have done so. But the problem is, I have no one that represents me in Congress. Yes, Wyden, Issa, Lofgren and even Bachmann seem to get it. But they're facing an uphill battle on what's supposed to be fairly obvious.

We hear all this talk about "rights holders" who don't happen to be artists or creators in any shape or form. Where are the ones that CREATE supposed to be in the new copyright regime? Where are the ones that copyright is supposed to benefit, such as artists, their fans, and the ones that can help finance the next project without censorship?

The Downward Spiral Will Continue

The last two Republican debates raised the specter of the theft of so-called "intellectual property" by foreign governments/companies. Specifically Romney on China. The implication; ever stronger laws censoring the internet for the average citizen in the name of National Security.

Though this issue is surfacing in the Republican debates, it really seems to be a bi-partisan effort. So it would seem that no matter who wins the 2012 election, the pendulum will continue to swing towards ever more onerous laws depriving citizens of civil rights. Our future government will be based on Corporatism, a government of, by, and for the corporations.

And here is the essence of the problem. The hell with the people who are trying to make a living creating content. There'd be no need for further laws if the public actually respected current copyright law and compensated the rights holders for their content.

Re: Therein lies a question or seven...

Technically, your congressman/woman or District Representative is supposed to represent your views in Congress. The only problem is they only represent the person that pays them the most...which tends to be big business (RIAA, MPAA)

For me, I continue to boycott the RIAA and MPAA by not going to movies...I can wait until they come out on TV as there's nothing worth seeing in the theaters now.

I don't buy any music from an artist that deals with the RIAA. I go to local shows and buy the CD's at the schwag booth for the artists I like. I'll buy CD's at stores (I use riaaradar.com to check if an artist is a member of the RIAA or not before buying their music.) for non-RIAA affiliated artists.

I think it is funny that the record label and movie companies do exactly what you want them to do (get away from the shiny plastic disc mentality) and then you promptly slam them for making the product and rights they are selling more transparent.

"they're able to establish their own rules to govern what you do with the content, rather than relying on the boundaries of copyright law."

The boundaries of copyright law aren't where you think they are, they are set by contract between the rights holder and the rights buyer. Limited rights have always been part of the equation, diluted by the presence of a physical media. Now that you have talked them into dropping the physical part, don't moan because all you have left to buy are rights, not a physical product.

Calling the rest "regulatory capture" is misleading, like saying that auto safety rules are in place to keep new companies out of the car market. They may have that effect, but it isn't the intention.

The benefits of copyright law are to the public, just not in the very immediate, very short term, right now sort of way that you wish they were. Over the long run, the public benefits from significantly more high end content in all fields, because these companies can use copyright law and licensing to tranche their work and be able to sell narrow rights to different groups of people or in different ways, at a price that the public can actually afford. Without basic rules of the road, it is very much harder to do business, and the public is much more likely to get scammed in the long run.

Okay, so you've named and even /renamed/ the problem. Now what?

I've concluded that only course of action which cuts through all these Gordian knots is to rouse the lower classes to fact that the upper class IS making war on them. Then the solution is easy: just go back to the high tax rates of the 60's, especially estate taxes, plus restrain banks again, outlaw Credit Default Swaps, and implement transaction taxes on stock trading. (And as "innovative" financial manipulations pop up, STOMP on them.) We're never going to have peace in the class war until those few having the major weapons are disarmed.

"The genius of our ruling class is that it has kept a majority of the people from ever questioning the inequity of a system where most people drudge along, paying heavy taxes for which they get nothing in return." -- Gore Vidal

Re:

Like GEMA sending a bill to a party that played only Creative Commons music? Who is being compensated here? What about the levy on blank media in Canada?
It seems that in today's world, you're being forced to pay for content you don't want to consume, even if you make every effort to not consume it.

Re: The Downward Spiral Will Continue

Current Law is Not the Level Playing Field

The statement by Anonymous that: ".. if the public actually respected current copyright law ...". ignores the land-grab by those advocating ever stronger copyright laws. No matter how "strong" copyright/patent law become, it never seems to be enough. So how can we have respect for a law that incrementally and continually eliminates the rights of citizens. Now if Anonymous was discussing respecting the first copyright act of 1790 he might have had a point.

I seriously doubt that Anonymous would have any respect for that law. How about a roll-back Anonymous?

Re:

Calling the rest "regulatory capture" is misleading, like saying that auto safety rules are in place to keep new companies out of the car market. They may have that effect, but it isn't the intention.

and drawing a false analogy is also misleading - there is no safety issue in here (unless it is the content industries wish to regulate all technology to the point where safety systems are compromised.)

Of course regulatory capture likes to hide behind other things (and having encountered it in US defence contracts in the past I know that it is rife in the American political and para-political system).

Re: Re:

Yes, and it's one of the reasons why music and movies are generally "sold" with similar rights across the board.

Get rid of copyright, and those contracts could vary from supplier to supplier endlessly, turning what is a very standardized marketplace into a hodgepodge of misleading, dishonest, or even scammy "contracts" that would screw the consumer and perhaps even the rights holders at the same time.

It's a "baby and the bathwater" issue here. Picking at a few smaller things and deciding to toss it all out is meaningless. Getting upset because the rights holders and consumers are working to adapt to a new style market place, well, that is premature, isn't it?

Re:

Over the long run, the public benefits from significantly more high end content in all fields, because these companies can use copyright law and licensing to tranche their work and be able to sell narrow rights to different groups of people or in different ways, at a price that the public can actually afford.
What you mean here is that content production can afford to be inefficient because of these laws.

Without basic rules of the road, it is very much harder to do business,
You mean with genuine competition it is much harder to do business - welcome to the real world.

Re: Re: Re:

"Get rid of copyright, and those contracts could vary from supplier to supplier endlessly, turning what is a very standardized marketplace into a hodgepodge of misleading, dishonest, or even scammy "contracts" that would screw the consumer and perhaps even the rights holders at the same time."

Strange, thats the situation we have now with the most extreme copyright expansion we've ever had in history. Labels and Studios have had a free-ride to screw over consumers and artist for years. And yet you defend that very system? What is your stake in all that?

Re: Re: Re:

those contracts could vary from supplier to supplier endlessly, turning what is a very standardized marketplace into a hodgepodge of misleading, dishonest, or even scammy "contracts" that would screw the consumer

That is what is happening anyway as rightsholders use "licencing" to route around the restrictions imposed by copyright law. That is exactly what the post is complaining about - glad to see you are in agreement.

Re: but copyright has always been about this

Nice try bringing in the Statute of Anne, but one should bear in mind that it was enacted in a different sovereign nation having a significantly different form of government than was the case when the first copyright act was enacted in the US in 1790.

IIRC, the original US act did not cover movies. Go figure. Oh, that came later and the law was modified to accommodate this newfangled thing.

Darn Congress, changing laws to reflect new things coming to the fore that were unknown at the time the prior legislation was enacted.

Re: Re: The Downward Spiral Will Continue

You raise a very good point, I've searched for a "correct" word for some time, but really haven't found a definitive word that resolves all my theoretical concerns.

The concern with Oligarchy is that it is the rule of a few that serves whatever is of interest to the few. While, we do having increasing influence by a few (for government to serve corporate interests) that would meet the criteria of Oligarchy; it misses the organic concept that government exists to explicitly serve corporate interests.

Re: Re: Re: The Downward Spiral Will Continue

Re: Re: Therein lies a question or seven...

I'd argue it's more than just who pays them the most. Congress looks on these businesses as legitimate voices representing the bulk of an industry - at least the bulk of the industry that provides the jobs and generates profits for the U.S.

I doubt they realize the scale of non-RIAA/MPAA business in the U.S. or that it even exists, or that there's any significant profit being generated in the industry outside the RIAA and MPAA. In that case, why wouldn't they pay heed to their concerns. I'm sure the number of constituents complaining about copyright is minimal.

Re: Okay, so you've named and even /renamed/ the problem. Now what?

Are you sure you are posting in the right thread?

As far as your quote goes in regards to the issue of Copyright. The industry may be 'genius' in terms of how they are 'taxing' the public in regards to copyright restrictions, but the public is in fact questioning it by simply ignoring the silly restrictions.

Re: Re: Re: Re: The Downward Spiral Will Continue

Re: but copyright has always been about this

When I first learned about copyright, it seemed obvious that it was meant to keep a big businesses from publishing my work and collecting profits without paying me. They had no right to copy it, and without copyright I would have little recourse to fight them. It made sense.

But when the creator gives up their copyright to the corporation, then it's all about big business protecting itself.

Re: Re: Therein lies a question or seven...

Re: Re: Re: Therein lies a question or seven...

Maybe for now. Eventually, however, more and more people will get tired of it, and hopefully things will swing back to be more reasonable.

There is no reason, whatsoever, for a big music company to take my vacation video that is nothing more than a recording of the environment I was at the time, and slap their name on it and steal the copyright of my video.

Once this happens to more and more people, hopefully the uprising will grow.

Until then, I'm spending my money on content and people that treat me like a paying customer should be.

Re: Competition

That piracy is not legitimate does not mean that it is not competition. However, unless you define piracy specifically as person or group making unauthorized copies that they then sell to a paying "customer", piracy largely is not competition because individuals who make copies for themselves do not translate to lost sales. They simply would not purchase one if they could not make or obtain a copy with out payment. Some of these people would be enticed to make a purchase if they had a different perception of the value of an "item", be it physical or digital. But that is a job for the marketing department, not the legal team.

I also like to point out that the issue here (with many of these arguments around piracy and patents and copyright) is not about piracy and loss of Public Domain content, it is about loss of civil liberties, such as due process and "the pursuit of happiness." That is why we are against legislation such as SOPA and PROTECT-IP. Not because we think all content should be free.

Re: Therein lies a question or seven...

The ones that create will be silenced by the corporations who can just spam their hosting companies with SOPA takedown notices if they even LOOK like they might be about to raise hell over unpaid royalties.....

Re: Re: Competition

You still get due process - you just don't get to keep on offending in the meantime. Crack dealers can't keep their crack, guys in stolen cars can't keep driving it until a court agrees it is stolen, so why should a website be allowed to keep running copyright infringing material until a court rules absolutely and all appeals have expired? That could takes years. Seems like a real burden on the rights holder.

You don't lose any civil liberties. You don't lose your free speech. You perhaps lose your current DMCA created "right" to publish anything and everything without concerns, and just take it down if someone complains.

Re: Re: Re:

"Yes, and it's one of the reasons why music and movies are generally "sold" with similar rights across the board."

Just because things are 'sold' with similar 'rights' across the board hardly means that the terms they are sold under are favorable to the consumers. Music and movies are generally licensed/sold by those who lobby for stricter IP laws under very one sided, anti-consumer, terms (ie: copy protection lengths last way too long). Just because they're all being sold under those same horrible terms doesn't make it a good thing.

Re: Re: Re: Competition

"That could takes years."

"You don't lose any civil liberties."

"You have all your rights."

So the website gets taken down for years, assuming one even fights it. In the mean time, your rights are being lost, at least for years. and for what, because some IP privilege holder complained? and if the court rules that the privilege holder is wrong, does the privilege holder provide compensation beyond just the lawyer fees? The penalties frail compared to the penalties for infringement.

"Seems like a real burden on the rights holder."

Because privilege holders ought to hold no burden and everyone else ought to hold all of the burden, especially since many won't even go through the trouble to fight even if they are right or if they are right they may ask that the content be returned online and the service provider may discuss the issue with the alleged privilege holder and the content will be restored. In the mean time, the content is removed and the privilege holder faces little deterrence for falsely requesting takedowns to content that it has no privileges on. Yet service providers can face huge penalties for not complying with takedown notices. The system is one sided in favor of those who want content taken down, they hold little burden yet everyone else holds all the burden.

"Crack dealers can't keep their crack, guys in stolen cars can't keep driving it until a court agrees it is stolen"

Re: Re: Re: Competition

I do not think the perception is that the person(s) who are alleged to be "infringers" should be allowed to continue, that is certainly not my position.

I think the perception is that if there is a website used by many many people to communicate and exchange information and one (a single user) is accused of some activity which is illegal under SOPA/PROTECT-IP then that ENTIRE website will be taken off-line.
- You might counter argue that the website operators are responsible to police that user and revoke their user status. That is reasonable (however potentially extremely difficult) But suppose the site operator does not know or is not informed? Is it a requirement under the proposed law that the accuser notify the website operator before filing a claim with the authorities?
- You may also counter that that is not the intended scope of these laws. Intended or not that is the scope of these laws. My personal opinion is that it is intended.
- People should have the right to publish anything and everything they want UP TO THE POINT that the purpose is commentary, criticism, news reporting, research, teaching, library archiving and scholarship etc. I know the concept of "Fair use" (much less any laws governing it) are a matter of great debate. My opinion here is that societal/cultural forces are at work here and this is not something that will be contained by legislation. making something illegal will not stop it if enough of the people decide to behave otherwise. That is the fundamental basis of democracy. Though the US is not a pure democracy it is founded and operates on many democratic principles.

To come back to my point; I do not want or expect criminals to keep on breaking the law until they are proven guilty in court of law by a jury of their peers. But I DO feel it is unreasonable to silence the voice of even one person over the ALLEGED actions of another individual (in a civil matter) with no burden of proof on the accuser.

Re: Re: Re: Re: Re: Therein lies a question or seven...

Re: Re: Re: but copyright has always been about this

It's a red herring....

Has nothing to do with the facts and since he can't dispute the facts... look at that red herring.... have you ever seen one of those in the wild? They are pretty rare, we should take some time to take a closer look at it....

Re: Re: Re:

Richard, what genuine competition are you talking about? Nina Paley movies?
Obviously not because that competition is obviously already there.

Let's be frank here:

Yes let's. When you have real competition new starters can enter a market and grow rapidly. That happens frequently in the tech industries. Of the major tech companies only IBM and the big telcos predate the 1970's - amongst the content industries there has been no really successful startup for many years.
The reason for this is that, given long copyright terms, the established players can cross subsidise new production from the profits of the back catalogue. This is NOT fair competition.

Competition from your own product being given away by people who have no costs involved isn't competition, it's a crime.

No - you are wrong - it is simply competition. It only became illegal in the first place at the behest of lobbyists.

When someone can do the duplication task more cheaply than you can then the free market says that you let them do it. You are confusing marginal and fixed costs here and trying to enforce vertical integration where it is not required.

Please, point me to the actual competition, you know, the ones that don't involve copying the other guy's stuff and giving it away.
We don't have it at present because of your unjust an impracticable laws.

You have to fund the fixed costs up front - then you don't need downstream restictions. Only then will you have proper competition.

The current shape of the content industry (no successful startups, ridiculously expensive production costs - just look at all the money the movie industry wastes paying people to stand around waiting to do their jobs) tells me that there is no genbuine competition here.

Law

The writer seems to think that copyright law was invented to benefit the public but it is quite the opposite. It was put in place to benefit copyright owners and get money from the public! His argument is that the entertainment industry is harming the public and therefore copyright law by not allowing fair dealing and first sale rights. Firstly, there is still nothing stopping people using music and film in school projects etc. for free and secondly if someone buys an MP3 all their friends are going to copy it and this will be pretty much undetectable anyway. Rather than ruining copyright law they are having to adapt to a changing business environment for survival. Admittedly there are some measures being put in place that seem onerous on service providers but once ISPs, service providers, copyright owners, consumers and the government actually come to a proportionate agreement on who is responsible for policing copyright, things may get a little fairer. However with new business models coming out every 5 minutes the law has no chance of keeping up and this debate is set to last forever.

Re: having to adapt to a changing business environment

There are far more examples in the news of companies resisting a changing business environment through litigation than successful new services or startup businesses. Through those actions industries that resist and are slow to change are in effect "harming the public". Price gouging and restriction or denial of cultural works are examples, even though they may not be fact the perception exists. I do not deny a performer, a group, or even a company the right to derive income from the works they create. I get less forgiving of companies who do not create but just horde stockpiles of cultural works to squeeze money out of. Eventually those works should belong to the public because it is the people/society that made them significant. A performers greatest master piece is nothing if no one loves it.

Re:

You apparently either didn't read the article or have completely missed most of it.

When we owned the physical product we had the right to sell it or give it away. That's gone. Not because the public chose for things to work this way, but because the sellers want us to pay over and over for the same thing. The boundaries of copyright were previously set by the law. In fact the courts declared the ersatz contracts in books and other media, the equivalent of modern EULAs, null and void, because they contravened the law.

The intention is very clearly regulatory capture and the situation is in no way analogous to car safety requirements.

The public does not benefit because nothing ever goes into the public domain, so that others might use it and build on it. The author does not wish for right now benefits, but the long term benefits copyright was meant to provide. The corporations behind all this corruption already make huge profits in the short term, so they don't need endless copyright to keep making new things, but they want it because it allows them to lock others out of the market and prevent the public from ever owning anything.

Re: Re: Re: Competition

Actually someone accused of possessing crack or a stolen car should have the right to have the authorities prove immediately that it is in fact what they claim it to be. Furthermore the rights of others shouldn't be infringed, as they currently are with asset forteiture laws that allow the police to effectively steal property at will, and similarly allow alleged rights holders to shut down everything due to claimed infringement by some people.

Re: Law

The longer term goal was public benefit through the shorter term goal of having exclusive rights to profit from something. That goes out the window when copyright is so long you can't borrow from any living artist and keeps getting extended so that you can't borrow from anyone ever again. The public has been sold a package of nonsense about art and creativity. It has always involved borrowing, reusing and reworking.